The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-12-14

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ed right of way, and found it neces-
sary to raise its track above the natu-
raj surface of the land is not bound to
provide culverts or otner means for the
passage through the embankment of
surface water or water flowing from q
river and descending from or over the
lands of the adjoining owner.
Cairo &c. vs Stevens 73. Ind. 27S,
reported in 48 Am. Rep. 139.
O'Connor vs.. R. R. Co., So Wis. 525,
reported in 50 Am. Rep. 753.
Barclay vs.. Wilcox, sc N. Y. 140,
reported iu 40 Am. Rep. 519.
2 Woods Railay Law, SS4. Noe:
i'd. 8S2.
NON-SUlT.
The plaintiffs first exception even if
the Circuit Judge was in error can not
be considered as it was not material to
the facts upon which the non.suit was
granted.
The plaintiff may offer enough testi-
mony to entitle him to GO to the jury,
and yet by his admission render non.
suit proper.
Pool VS.. r. R. Co. % S. G. 2S6.
"The law governing non.suits is
correctly stated by appellant to wit:
That non-suit is proper where there
is no evidence pertinent to the material
allegations, one or more, of the COM
plant, &C."
Milling VS.. Sanders MSS. S. c.
The question as to how much was
planted within 100 feet of the railroad
track was not material to the point as
to how the damage was done.
The same principle applies to plain.
tiff's second exception. The declara.
tions of the section master were not
part of the res gestae and no proper
foundation was laid for such testi-
mony.
Petrie vs. R. R. Co. MSS. S. G.
The 3rd and 4th exceptions are too
general aud therefore can not properly
be considered, but even ifconsidered We
submit they cannot prevail.
The burden of proof was on tht
plaintiff to show that he had sustained
legal damages or such as the law takes
notice of; he could only show this by
testimony that auater course was OBJ
structed, and failing in this the nom
suit was proper but he moi only failed
to show tuat a auater course was OBJ
structured, but the admissions in his
testimony shows that the alleged dam
age was done by surface water.
Upon the cross-examination of plain.
tiff, fol. IS, appears the following:
"Now, believe you stated that this
was caused by the rain falling waters
accumulated there by the over-Aowing.
Yes. Sir! it was, the rains accumula-
ted by the embankment."
But to set the question beyond all
doubt his Honor at fol. % says: 81
am satisfied however, that it appeared
in evidence that there was no running
stream, and that the damages com>
planned of were done by surface water.
This was one of the grounds Of the
motion for non-suit, and aoas not as
fact called in question By attorneys for
the plaintiff"
As it clearly appears both from the
admission in plaintiffs testimony and
the report of the case by the Presiding
Judge that the damage was done by
surface water, We will next consider the
question as to whether damages done
by surface water in consequence of a
railroad embankment are recoverable,
or fall under the head of injuries term.
ed domnum absga4e snj,ria.
The civiI law allows damages from
surface water to be recovered, but the
common luao does not. As the statute
of our State makes the common tav Of
force no damages are recoverable.
This is clearly shown by 2 Woods
Railway Law PIP Ss2 and 1856, and
from all the foregoing cases upon the
question of surface water.
AS the right to build culverts and
precipitate surface waite: in volume
on the land below is incidental to the
defendants right of way, and is includ.
ed in the compensation for the right Of
way, so, also, an damage by percola-
ton: the greater embraces the less.
The plaintiff as lessee of j. B. Sam
pie has no right to claim compensa.
ton.
Lewis vs.. r. R. Co. ! lth Rich. 81.
Williams VS.. Oliver Cheves 1873.
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